Citation Nr: 0106234
Decision Date: 03/01/01 Archive Date: 03/08/01
DOCKET NO. 00-04 240 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Columbia, South Carolina
THE ISSUE
Entitlement to service connection for a left leg disorder.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
C. Bryant, Associate Counsel
INTRODUCTION
The veteran had active military service from January 1972 to
November 1976.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a November 1999 rating decision in
which the RO denied service connection for a left leg
disorder. The veteran filed a timely notice of disagreement
and was afforded a hearing at the RO before a local hearing
officer in March 2000. His appeal has been perfected to the
Board.
REMAND
The veteran and his representative contend that the veteran's
left leg disorder was incurred in service. Specifically, the
veteran states that his left leg disorder stems from an in-
service training accident in April 1972, when his left leg
was compressed under a tank gun. The veteran maintains that
the military misdiagnosed his left leg disorder while in
service, and his left leg has degenerated for decades after
his discharge.
Initially, the Board notes the veteran has identified
treatment sources from whom some but not all records have
been obtained including those from Todd Chapman, M.D.; John
Noble, Jr., M.D.; and William L. Lehman, Jr., M. D.. The
veteran also submitted letters from Dr. Noble and Dr. Lehman,
and two left knee magnetic resonance imaging (MRI) reports
originating from their offices, dated December 1998 and
January 2000. It does not appear that the RO attempted to
obtain the treatment records from the aforementioned sources.
Prior to making a decision in this case, all pertinent
medical records should be reviewed.
The Board further notes that the evidence of record contains
medical opinions from the veteran's treating physicians, Dr.
Lehman and Dr. Noble, stating that there may be a
relationship between the veteran's current left leg disorder
and his left leg injury in service. The Board feels that the
physicians' opinions do not provide sufficient support to
determine service connection. It does not appear from the
evidence of record that the physicians reviewed the veteran's
service medical records or other records of treatment
pertaining to his symptoms prior to forming their opinions.
When a medical opinion relies wholly or partially on the
veteran's own report of his medical history, the Board is not
bound to accept the medical conclusion, as it has no greater
probative value than the facts as alleged by the veteran.
See Swann v. Brown, 5 Vet.App. 229, 233 (1993).
Following a complete review of the claims folder, the Board
finds that further development is warranted to comply with
the provisions of the Veterans Claims Assistance Act of 2000.
The Veterans Claims Assistance Act of 2000 provides, in
pertinent part, that a VA examination is necessary when there
is insufficient medical evidence to decide a claim. Veterans
Claims Assistance Act of 2000, Pub. L. No. 106-475, § 3(a),
114 Stat. 2096, 2097-98 (2000) (to be codified as amended at
38 U.S.C. § 5103A). Furthermore, VA must make reasonable
efforts to obtain records (including private records) that
the veteran sufficiently identifies. Id.
At present, private treatment records contain current
diagnoses of a left leg disorder. Furthermore, there is
evidence that the veteran suffered a left leg injury in
service. For service connection purposes, however, the
question remains whether the in-service trauma to the
veteran's left leg, or any other in-service disease or injury
to which the veteran was exposed, was the cause of his
current left leg disorder, as claimed by the veteran.
As noted above, treatment records have not been obtained for
association with the claims folder from identified sources.
Furthermore, inasmuch as there is insufficient medical
evidence to decide the claim, the veteran has not been
afforded a VA examination.
Based on the foregoing, the case is REMANDED to the RO for
the following action:
1. The RO should obtain and associate
with the claims file complete copies of
the veteran's treatment records
originating from the offices of Dr.
Chapman, Dr. Noble, and Dr. Lehman. If
the requested records are unavailable, or
the search for such records otherwise
yields negative results, that fact should
be clearly documented in the veteran's
claims folder, and the veteran and his
representative so notified.
2. The RO should again contact the
veteran and ask him to identify any
sources of information which would tend
to show complaints, findings, treatment,
or diagnosis of a left leg disorder,
which have not been obtained to date,
with special attention to sources of
information during the period of one year
following his discharge from service in
1976. These sources may include private
medical records showing treatment of the
claimed disability, employment physical
examinations, fellow service personnel
statements, or personal testimony. All
information obtained should be associated
with the claims folder.
3. After associating with the claims
folder all available records received
pursuant to the development requested
above, the veteran should be afforded an
appropriate VA examination to determine
the nature and etiology of any diagnosed
left leg disorder. It is imperative that
the physician who is designated to
examine the veteran reviews the evidence
in his claims folder, to include a
complete copy of this REMAND. All
appropriate tests and studies should be
conducted, and all clinical findings
should be reported in detail. Following
examination, the physician should
diagnose all left leg pathology. The
physician should render an opinion, as to
whether it is as least as likely as not
that any current left leg pathology is in
any way related to the veteran's active
military service or whether it is due to
other causes. Furthermore, the examiner
should specifically consider and comment
on the opinions of Dr. Lehman and Dr.
Noble, which linked the veteran's current
left leg disorder to service. All
examination findings, along with the
complete rationale for each opinion
expressed and conclusion reached, should
be set forth in a typewritten report.
4. To help avoid future remand, the RO
must ensure that all requested
development has been completed (to the
extent possible) in compliance with this
REMAND. If any action is not undertaken,
or is taken in a deficient manner,
appropriate corrective action should be
undertaken. See Stegall v. West, 11 Vet.
App. 268 (1998).
5. The RO must also review the claims
file and ensure that all notification and
development action required by
the Veterans Claims Assistance Act of
2000, Pub. L. No. 106-475 has been
completed. In particular, the RO should
ensure that the new notification
requirements and development procedures
contained in sections 3 and 4 of the Act
(to be codified as amended at 38 U.S.C.
§§ 5102, 5103, 5103A, and 5107) are fully
complied with and satisfied.
6. After completion of the foregoing,
and any other development deemed
warranted by the record, the RO should
re-adjudicate the issue of entitlement to
service connection for a left leg
disorder on the merits, in light of all
applicable evidence of record and all
pertinent legal authority, to include the
recently amended/added statutory
provisions pertaining to VA's duty to
assist/notify a claimant. The RO must
provide adequate reasons and bases for
all of its determinations, citing to all
governing legal authority and precedent,
and addressing all issues and concerns
that are noted in this REMAND.
7. If any benefit sought on appeal
remains denied, both the veteran and his
representative should be provided with an
appropriate supplemental statement of the
case and given the opportunity to respond
within the applicable time before the
claims file is returned to the Board for
further review.
The appellant has the right to submit additional evidence and
argument on the matter the Board has remanded to the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the United States Court of Appeals for Veterans
Claims for additional development or other appropriate action
must be handled in an expeditious manner. See The Veterans'
Benefits Improvements Act of 1994, Pub. L. No. 103-446,
§ 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West
Supp. 2000) (Historical and Statutory Notes). In addition,
VBA's Adjudication Procedure Manual, M21-1, Part IV, directs
the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
LAWRENCE M. SULLIVAN
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2000).